MOFFITT

v.

GARR ET AL.

Mr. Justice NELSON.

The suit was brought by Moffitt against the defendants, for the infringement of a patent for an improvement in grain separators.”

The defendants plead to the declaration, that since the commencement of the suit, the plaintiff had surrendered his patent to the United States, for' the alleged infringement of which the action was brought. . To which the plaintiff put in a,general demurrer. The court overruled the demurrer,,and sustained the plea, and gave judgment accordingly.

The 18th section of the act of Congress of July, 4, 1836, provides, “that if a patent shall be inoperative, &c., it shall be lawful for the Commissioner, upon the surrender to him of-such patent,” “to cause a new patent to be issued, &c., and the patent so reissued” “ shall have the same effect and operation in law on the trial of all actions hereafter commenced, for causes subsequently accruing, as though the samé had been originally filed in'the connected form,” &c.

Now, the point in the case is, whether or not the patentee may rnaintain a suit on the. surrendered patent instituted before the.surrender, if he has not availed himself of the whole of the provision, and taken out a-reissue of his patent wim an amended specification. The, construction giv'en to this section, so far as we know, and the practice under it, in case of a surrender and reissue, are that the pending suits fall with the surrender. A surrender of the patent to the Commissioner within the sense of the provision, means an act which, in judgment of law, extinguishes the patent. It is a legal cancellation of it, and hence can no more be the foundation for the assertion of a right after the surrender, than could an act of Congress which has been repealed. It has frequently been determined that suits pending, which rest upon an act of Congress, fall with the repeal of it. The reissue of the patent has no connection with or bearing upon antecedent.suits; it has as ,to subsequent suits. The antecedent suits depend upon the patent existing at the time they Were commenced, and unless it exists, and is in force at the time of trial and judgment, the suits fail.

It is a mistake to suppose, that, upon this construction, moneys recovered on judgments in suits, or voluntary payment under the first patent upon the surrender, might be recovered back. The title to these moneys does not depend upon the patent, but upon the voluntary payment or the judgment of the court.

We are satisfied the judgment of the court below is right, and should be affirmed.